OFCCP: Ask the Experts

OFCCP Ask the Experts

Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question.

It is within compliance requirements to have such a disposition. The challenge with all dispositions is to apply them consistently without making exceptions. If there is a "hiring radius" for a particular job, it should not cause adverse impact. It also may vary by job. (An admin position may be filled locally, but a harder to fill job is likely to be filled from a wider radius.) As with any disposition, ensure that there is a solid foundation for the requirement. For example, if employees have generally come from a 25 mile radius, then using that area for the definition would be more supportable than an arbitrary guess. However, if there is adverse impact from that particular disposition code, including area limitations, it is very important to determine whether the requirement is necessary or can be modified. For example, noting in the job announcement that relocation expenses are not authorized for the particular position.

I am a strong believer in disposition codes that record the actual reason the job seeker was eliminated from further consideration -- provided, of course, that the reason is not one that is discriminatory on its face (disparate treatment). If ANY reason for rejecting a job seeker who also meets the definition of Internet Applicant disproportionately excludes a particular race/gender/national origin group the employer must be able to articulate the business necessity for that reason so I certainly agree with Lisa that reasons for non-selection (and the corresponding disposition codes) should be narrowly drawn and be well grounded in fact and the employer’s experience. And I agree wholeheartedly that the employer’s unwillingness to pay relocation expenses is properly a part of any job announcement.

And I also believe there there is something else to consider: whether it could be both the the responsibility -- and the right? -- of the job seeker to decide to compete for a position that requires un-reimbursed relocation.

I, generally, do not recommend that employer’s make such decisions “for” the job seeker. To me this is too reminiscent of the days when employers excluded women (largely) on the assumption that they 1) wouldn’t/couldn’t work (unscheduled) overtime or night shift, or 2) wouldn’t/couldn’t travel overnight or 3) wouldn’t/couldn’t work outside/in dirty workplaces, etc. Even granting these assumptions weren’t a pretext for misogyny, it had the same effect as deliberate discriminatory treatment.

It is absolutely the right of the employer not to waste its resources pursuing a person who wants/is expecting company paid relocation. So, when it comes to relocation (or other terms and conditions of employment) I think the best practice is to ASK question on an application -- such as “Are you willing to relocate at your own expense?” -- that will permit it to avoid investing its resources pursuing a person who really wants a job that's different than the one it has advertised!

There are many personal reasons why a particular job seeker might be wishing to change locations as well as jobs. If, for example, the job seeker is currently looking for a job across the country because his – or her – spouse is being relocated to that area (perhaps at another employer’s expense!) and the employer arbitrarily excludes from consideration any job seeker whose current address isn’t within whatever its geographical parameters are, the employer may well have lost out on someone who might be a highly competitive applicant/excellent employee.

ALSO – and thereby obviating ANY potential “disparate impact” challenges – if the job seeker says “No” to your “relocate at your expense” question, that individual is NOT an Internet Applicant. S/he hasn’t applied for the job you have – which does not include relocation expenses. Another way to think of it is that s/he has implicitly “withdrawn” the expression of interest because she is not willing to accept the terms and conditions of the position -- for reasons that are utterly irrelevant to qualifications.

I believe it is prudent for employers to – CONSISTENTLY job by job -- encourage people to “opt out” themselves a) by providing what I term a “realistic job preview” of the job’s demands/working conditions/start date, etc. and/or asking such questions on an application AS EARLY AS POSSIBLE IN THE PROCESS so that neither party wastes its time being assessed/assessing those with whom there is no “meeting of the minds” about what the job IS and what the job is THAT IS SOUGHT.

No one will (or should) pay a penny of back pay to any person who has disclosed that s/he wouldn’t be available to start work until after graduation in June when you need/want to fill THAT vacancy in February. Ditto the person who won’t work nights or won’t travel (for WHATEVER reason that is none of your business) if the job is on night shift/requires travel. Also true of the person who assumes s/he can negotiate better compensation for the job having been previously told/asked? “would you accept a position paying [the union contract rate of $18.11] [a probationary salary of $41K] [a monthly salary between $74,000 and 90,000 depending on experience/education]. NOTE: This is NOT THE SAME as soliciting compensation history or even “wishes” from an applicant. This is telling every job seeker what the compensation is for the job. Bold, I know! But worth considering, especially in light of a trending prohibition against asking the job seeker to disclose anything about his or her compensation history.

The Internet is a great tool for both employers and job seekers. But it also permits job seekers to "apply" with the greatest of ease and with virtually no expense to hundreds, even thousands of employers. Don't you have the sense that there is an almost universal tendency to "throw it against the wall and see if it sticks"? By both internal and external job seekers! Even with "a realistic job preview" by the employer -- such as adding the "no relocation expenses will be reimbursed" -- there is no guarantee that any particular job seeker actually read the detail provided or, in other words, really wants YOUR job. All the more reason for every employer to do a reasonable "dive" into what each job seeker really wants/actually would accept in a job. Hopefully, the contractor has empirical data on the reasons people don't accept its job offers or terminate before it has even recouped its recruiting and indoctrination costs. I'm sure those reasons are explored early in the selection process -- either by "guessing" from the resume or in an early interview. I'm suggesting those reasons shape some questions you ask BEFORE you've done an assessment of an individuals qualifications, thus triggering record keeping and analytical obligations.

DO use -- and require the completion of -- an electronic application in addition IF YOU WISH to permitting the job seeker to upload his or her resume. Resumes tell the employer what the JOB SEEKER wants to share; well constructed application forms solicit the information THE EMPLOYER wants to know.

Always assuming CONSISTENCY in the employer’s treatment, the OFCCP cannot require employers to pay relocation expenses, or to continue to pay a demoted employee more than the top rate for the job, or to “hold a job open” until after a person graduates, or to eliminate or modify unpleasant or arduous working conditions that are “essential” to the job, or to violate a union contract, or to pay “more”, or to eliminate overtime or shift requirements nor to otherwise change any lawful term or condition of a job.

Employers who both ASK for and TELL information that would predict not hiring even the most UBER-qualified young white male are, in my view, serving the interests of both themselves and job seekers. To further serve contractors’ interests it is essential that disposition codes be established AND USED that will permit the contractor to easily identify -- and then eliminate from discrimination analyses -- those job seekers it has good reason to believe were not seeking – nor were they thus “considered” for -- the particular job for which the analysis is being performed.

Status Codes for Candidates

Asked by Mary S. - Jan 07, 2019

Hello,

Oftentimes in my organization we will be waiting to hear back from a Hiring Manager prior to sending them a new batch of qualified resumes. For example, we may have 5 new applicants for x position, so we review them to see if they could be a fit. However, if we sent the HM 3 resumes a day or two prior, we would want to hear back about those before sending new ones.

What is the best way to approach this to be compliant? Right now, we are leaving opened resumes in our "New" status and rejecting those which do not meet our basic requirements. The next step we have outlined is "Hiring Manager Sent". We were considering adding a new status code, and are interested in hearing your thoughts.

We always try to bring interns/co-ops back for multiple terms and often try to get their commitment before they leave to go back to school well in advance. Given that, is there any requirement to post once they have joined us once for additional internships/co-ops?

The obligation to post your positions with the ESDS per the VEVRAA mandatory job listing requirement, applies to all payroll positions, with the exception of senior management positions, internal positions, and jobs lasting three days or less.

If the intern position is on your payroll, then you have an obligation to list the position when you first hire the intern. Unless you have terminated their internship, and subsequently from your payroll, if they come back for multiple semesters, there is no need for you to re-post their position.

Job Application Statement of Accuracy Compliance

Asked by Chelsea B. - Dec 13, 2018

Hi there!

We are currently updating our company's job application with a 'Statement of Accuracy' at the end, basically stating that all information is correct, this application doesn't guarantee employment, etc. etc. etc. We have the option to just select 'Yes' from a drop down when asked this question, OR select 'Yes' AND type their name. Does anyone happen to know if it is required to write your name, or if clicking 'Yes' would suffice? we just want to make sure that we are following correct protocol and staying in compliance.

Depending on your state location, it may or may not be acceptable. There may be certain laws in your state that require that the applicant initial the certification or write in their name. Many states have state-specific laws on various aspects of information that are requested on an employment application as well as required disclosures. So be sure to check that your employment application complies with the employment law in your state or jurisdiction. If you are a multi-state employer and using a universal application, make certain that you are segregating and including the requisite state disclosures and prohibitions.

It’s best practice to have your legal counsel review whenever you make changes to your employment application, giving special attention to areas such as criminal history, credit reporting, information requested, and required disclosures.

Dispositions Best Practice

Asked by Anonymous - Dec 05, 2018

I watched the documentation best practice webinar. I have a question about dispositions. Is it best practice to reject candidates based only on their resume? Or should we have application questions that clarify by self report if an applicant does or does not meet minimum qualifications?

Do you truly mean “MINIMUM qualifications” – as distinguished by law (OFCCP regulation 41 CFR 60 – 1.3, within the LONG definition of “Internet Applicant”) from “BASIC qualifications”? Since you made reference to the documentation webinar, I’m going to assume you mean BASIC qualifications. BIG difference! [A difference that really matters for purposes of certain record keeping obligations is the duty to solicit race, sex and ethnicity information, in general for government contractors, only from those who meet the definition of “Internet Applicant” – which may be a small percentage of the masses of people who need only “press a button” to apply for each job. This is also a difference that really matters with respect to the annual analysis of selection decisions that a contractor must prepare and must submit to the OFCCP in response to a notice that the establishment has been selected for a compliance review.]

“BASIC qualifications are those which the agency summarizes as “…noncomparative, objective and which are relevant to the particular position [filled]”; they must also be “advertised or established in advance [of making any selection decisions for the particular position”]. The agency also provides a number of helpful FAQs on its website. With specific reference to “Basic Qualifications” see https://www.dol.gov/ofccp/regs/compliance/faqs/iappfaqs.htm#Q1BQa. As distinguished from “BASIC qualifications”, a contractor’s “MINIMUM qualifications” might include, for example, a passing score on a pre-employment test whereas the definition of “BASIC” qualifications specifically EXCLUDES such tests (whether on line or administered on site) from that term. Basic qualifications also EXCLUDE those that are “comparative” (e.g. “must be one of the top five applicants”) and/or “subjective” (e.g. “must be ambitious”). And while these examples of “MINIMUM qualifications” also do not have to be ADVERTISED in advance they certainly can be. And, as a practical matter, basic qualifications must be ESTABLISHED in advance (and communicated to all the individuals who evaluate job seekers’ qualifications!!) or the employer is almost certainly going to treat job seekers differently as it goes thru the assessment process day after day, perhaps week after week.

There are other elements for which information will only be available to the contractor if it asks…it’s not going to be on a resume... that MATTER when it comes to triggering recordkeeping and analysis requirements. For example, “date available to start work”. If the contractor has a job it advertises in February and needs to fill quickly, it will not be able to do an early elimination from the screening process – regardless of qualifications –of the person who won’t be available until August UNLESS IT ASKS THE QUESTION up front and before making a substantive assessment. Similarly, unless it compels each job seeker to COMMIT to identifying a specific position (or positions) for which recruitment is underway the contractor has created for itself significant additional record keeping hurdles and analytical integrity issues: for which “particular” position was the job seeker’s “basic qualifications” assessed.

As to the specific “basic qualifications” – as well as other elements of a resume – the contractor is much more likely to learn what it wants to know versus what the job seeker wants to tell you if it asks specific and pointed questions: “how many years…”, “how many dollars in budget responsibility…”, “how many employees supervised”; “did your college course work include a study of fiber optics”, “Have you ever had final responsibility for preparing your department’s budget? When?”.

Furthermore, there are other elements of a definition of “applicant” – Internet or otherwise – that aren’t a part of the “qualifications for a particular job” assessment, including whether the job seeker's resume/application/on-line application is even legible. Sometimes it is not…an assessment can’t be made because the document or record simply isn’t legible/readable. (While infrequent, system failures can also "mangle" a record to illegibility) The contractor needs a disposition code to “dispose of” such a job seeker who might – as it turns out in court – have superior “basic qualifications – the employer simply couldn’t decipher what they were!

Or the job seeker is an employee who has not been in his or her current position long enough, or whose absenteeism is unacceptable, to be eligible for consideration. This isn't an assessment of the person's skills, knowledge or ability to do the job -- any more than "legal to hire" -- is such an assessment; it's simply the employer's rule -- or the law as the case may be. Use a discrete disposition code to make it easy to exclude such individuals from data which are captured for any discrimination analyses.

Asking questions about “availability” FOR THE PARTICULAR POSITION is the only way to find out if the person is truly seeking the job you are trying to fill! “Are you willing to work occasional overtime?”; “Are you available for frequent overtime?” “Are you willing to travel for periodic work at another company location?” “Do you have a preference for shift (Day, Afternoon or Night)?” Is there any shift you do not wish to work for whatever reason (Day, Afternoon or Night)?” Obviously, there is the potential for “disparate impact” as well as disparate treatment with respect to such terms and conditions of a job. But if treatment is consistent and the requirements of the job or the nature of the specific open requisition include shift work, travel, overtime then it is best to flush out early those persons who will be rejected or who will explicitly withdraw later.

Soliciting such information from job seekers in addition to the information they provide on resumes will save the employer wasting its time or the job seekers’ time processing resumes – or even conducting interviews – with job seekers with whom it does not have an authentic “meeting of the minds” about what job s/he really wants. This is but one example of what I call a “realistic job preview” which also includes telling people up front what the lifting requirements of the job are (the ACTUAL PHYSICAL ones, of course) or the exposure to dust or cold/hot temperatures. I’ve known recruiters for whom it was anathema to tell job seekers the “dirty details” up front…somehow they believed they could always talk someone into taking a job that was at odds with people's very real preferences or needs. Based on my experience, I don’t agree at all – and I’m certain that such persons, if they come to work at all, are not long retained -- and we start the process all over.

To sum up, it is ALWAYS a “best practice” to use a disposition code that is as accurate as possible in describing “what happened”. Consequently, MORE are definitely BETTER.

It is also always a “best practice” to pare down the number of “applicants” who must be included in any discrimination analysis BECAUSE THEY WERE “CONSIDERED” (that is, an assessment was made of BASIC QUALIFICATIONS) for selection into a particular position. The larger the number of persons in a discrimination analysis the more likely it is that differences in selection rates will be statistically significant for one or more races/ethnicities and/or for gender. The more people NOT selected, the more potential victims in an alleged “class” and, ultimately, the greater the financial risks.

Managing numbers – while still ensuring there are enough qualified persons in any applicant pool to make a good selection decision – is an important compliance strategy. And being able to COUNT THE RIGHT NUMBERS based on accurate disposition coding is critical.

For more info and recommendations on the use of disposition codes you might want to read my articles in the May and June 2018 issues of The OFCCP Digest on this website.

AAP Advice

Asked by Anonymous - Nov 29, 2018

We are a non-profit servicing elders and disabled that recently aquired another non-profit agency in the same sector. This new acquisition received notice of an OFCCP audit. The last AAP plan in place is dated 2016. They have no ATS in place and no applicant data at all aside from 3 boxes worth of hardcopy applications. How do I go about creating an AAP with no applicant information or virtually no information aside from current employee data? The plan would essentially be incomplete. Do you suggest we take the time to input all of those paper applications? How do you suggest I tackle this and what should my first steps be?

In an audit, it is imperative that the Affirmative Action Plan and support data be as complete as possible. According to the rules and regulations enforced by the OFCCP, a lack of data can be a real problem for any company. I suggest you take a look at availability data as well to identify problem areas - this is what the agency typically looks at in an absence of data. You may want to seek assistance from a professional that has tackled this type of issue before. Remember that any conversations with a compliance officer may bind your company to statements. Good luck in your audit.

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